Filed 12/22/05 P. v. Valdivia CA2/6

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION SIX

 

 

THE PEOPLE,   Plaintiff and Respondent,   v.   HECTOR VALDIVIA,   Defendant and Appellant.

2d Crim. No. B177649 (Super. Ct. No. 2003009475) (Ventura County)

 

 

Hector Validivia appeals from the judgment entered after his conviction by a jury of the first degree murder of Rusty Zuniga. The jury found true enhancement allegations that: (1) appellant had personally and intentionally discharged a firearm proximately causing death (Pen. Code, § 12022.53, subd. (d)),^[1] and (2) appellant had committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) In addition, the jury found true a special circumstances criminal street gang allegation. (§ 190.2, subd. (a)(22).) The trial court sentenced appellant to life without the possibility of parole.

Appellant contends that the evidence is insufficient to support the true findings on the criminal street gang enhancement and special circumstances allegations. He also contends that the trial court erroneously instructed the jury on the factors they should consider in determining the weight to be given eyewitness identification testimony. We affirm.

Facts

On October 26, 2002, approximately 100 guests attended a party at a residence in Santa Paula. One of the guests was Rusty Zuniga.

Appellant walked up the driveway adjacent to the residence. He was wearing a sweatshirt with a hood. The hood was up so that only his face from mouth to eyes was visible. His hands were in the front pocket of the sweatshirt.

Zuniga walked by appellant. Zuniga had his back to appellant when appellant pulled out a chrome .45 handgun. Appellant said, "Rusty," Zuniga's first name. Appellant then shot several times at Zuniga until the gun jammed. Zuniga was "within a car's length" of appellant when he was shot. Immediately after the shooting, appellant ran away.

The parties stipulated that, at the time of the shooting, appellant and Zuniga were active participants in and members of criminal street gangs, that the street gangs "engaged in or have engaged in a pattern of criminal gang activity," and that they "knew that the gang members . . . engaged in or have engaged in a pattern of criminal gang activity." Appellant's gang was the "Crimies." Zuniga was a member of a different criminal street gang: the "PartyBoyz." The parties also stipulated that appellant had had 18 "gang-related contacts with the Santa Paula Police Department."

On June 16, 2003, while awaiting trial for the murder of Zuniga, appellant was incarcerated in cell 10 at the pretrial detention facility of the Ventura County jail. Jose Rivas, a member of the PartyBoyz, was in cell 12. When both cells were opened to provide access to a common area, appellant walked into cell 12 and assaulted Rivas. Deputies restrained appellant and asked him "what the fight was about." Appellant replied that he "and Rivas were rivals from Santa Paula."

Former Santa Paula Police Officer Michael DeDecker testified as a gang expert for the People. His testimony was as follows:

Respect is of paramount importance to gang members. "[G]ang members engage in crimes of violence because the most feared gang is the most respected gang." Moreover, "the gang members committing the acts [of violence] will have a higher stature within the gang." A gang member "puts in work" for his gang by attacking members of a rival gang that have "disrespected" his gang. By putting in work for the gang, the gang member enhances his status within the gang. An extremely violent gang member will have a status "like that of a movie star. People will really look up to him."

The Crimies is the oldest criminal street gang in Santa Paula. (RT 373) Its main rivals are the PartyBoyz and BadBoyz criminal street gangs. The PartyBoyz and Badboyz are allied with each other. All of the gangs claim Santa Paula as their territory.

In 2002 and 2003 there was "a pattern of activity wherein [the Crimies and the PartyBoyz] suffer[ed] casualties." On October 16, 2002, 10 days before Zuniga was shot, a Crimies gang member was shot in the face. On February 9, 2003, a PartyBoyz gang member was murdered. Minutes later, a Crimies gang member was murdered in the same area.

The killing of Zuniga by a Crimies gang member would benefit the Crimies street gang. "[K]illing of a rival gang member benefits the gang because . . . it shows that they will do the most violent act to their rivals and that any insult that a rival does to them will not go unanswered."

Appellant's June 2003 assault of Jose Rivas while they were incarcerated in the Ventura County jail was "gang related." DeDecker explained: "If [appellant] sees another gang member [from a different gang] and he attacks [the gang member], it's gonna benefit himself as [to] his status because he's showing . . . the fact [that] even if he's in custody he's still showing his alliance with his gang and he'll attack a rival at any time."

Sufficiency of the Evidence

The special circumstances allegation requires that the murder be "carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) The gang enhancement allegation requires that the defendant be "convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) Appellant contends that the evidence is insufficient to support the true findings on these allegations.

We apply the same standard of review used to determine whether the evidence is sufficient to support a criminal conviction. (People v. Sapp (2003) 31 Cal.4th 240, 282; People v. Augborne (2002) 104 Cal.App.4th 362, 371.) " 'We "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the [allegations true] beyond a reasonable doubt." ' [Citation.]" (People v. Sapp, supra, 31 Cal.4th at p. 282.) "[T]he testimony of a single witness, including an expert witness, is sufficient to constitute substantial evidence to support a jury's finding." (People v. Vega (2005) 130 Cal.App.4th 183, 190.)

Substantial evidence supports the true findings on the special circumstances and enhancement allegations. Viewing the evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact could find beyond a reasonable doubt that the murder was committed for the benefit of the Crimies and to further the gang's activities. A reasonable trier of fact could also find, beyond a reasonable doubt, that appellant had the specific intent to promote, further, or assist in criminal conduct by gang members.

The gang involvement is obvious. Appellant was a member of the Crimies, and Zuniga was a member of the PartyBoyz. The main rivals of the Crimies were the PartyBoyz and the BadBoyz, who were allied with each other. Ten days before Zuniga was shot, a Crimies gang member had been shot in the face. It is reasonable to infer that the Crimies blamed this shooting on their main rivals and were seeking revenge. Appellant recognized Zuniga before he started shooting. He said Zuniga's first name, "Rusty." Zuniga did nothing to provoke the shooting. Thus, Zuniga's gang affiliation is the only reasonable explanation for the shooting.

The murder was for the benefit of the Crimies. DeDecker testified: "[K]illing of a rival gang member benefits the gang because . . . it shows that they will do the most violent act to their rivals and that any insult that a rival does them will not go unanswered." The killing enhanced respect for the Crimies by instilling fear in rival gangs and the community. According to DeDecker, respect is all-important to gang members, and "the most feared gang is the most respected gang."

By instilling fear and respect in rival gangs and the community, the murder of Zuniga promoted, furthered, and assisted in criminal conduct by the Crimies. The fear and respect would deter others from interfering with the Crimies' criminal activities and from reporting such activities to law enforcement. DeDecker testified that a gang member will brazenly commit crimes without concern about being identified because he "is relying on the strength of the gang, the reputation of the gang, the fear and intimidation the gang has on the citizens and the fear that if he's seen 'No one is going to testify against me because I'm a Crimie' . . . ." DeDecker has had "great difficulties" in prosecutions involving gang members because of witness intimidation.

The murder of Zuniga enhanced appellant's stature within the Crimies. Appellant was "putting in work" for the gang. In gang culture, the most violent gang member is the most respected.

That the killing was gang motivated is further evidenced by appellant's assault of Jose Rivas, a PartyBoyz gang member, while they were incarcerated in the Ventura County jail after the killing. Appellant said that the fight had occurred because he "and Rivas were rivals from Santa Paula." As explained by DeDecker, appellant's assault of Rivas indicated that "even if he's in custody he's still showing his alliance with his gang and he'll attack a rival at any time."

Jury Instruction

The trial court instructed the jury pursuant to CALJIC No. 2.92 on the factors they should consider in determining the weight to be given eyewitness identification testimony.^[2] Appellant objects only to the following factor: "The extent to which the witness is either certain or uncertain of the identification." Appellant contends that "a witness's certainty or uncertainty in the accuracy of his or her own identification of a suspect is not a 'relevant' factor." Appellant notes that an expert witness for the defense, Dr. Robert Shomer, opined that "there is no relationship between [witnesses'] confidence [in their identification] and their actual accuracy." Appellant argues that the instruction on the certainty factor undermined Dr. Shomer's testimony. In addition, he argues that the instruction was unsupported by the evidence because "Dr. Shomer explained that certainty has no correlation to accuracy." Appellant maintains that the erroneous instruction deprived him of his constitutional rights to due process and a fair trial.

Appellant's argument is similar to that made by the defendant in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232. The Johnson defendant contended that the trial court had erred in instructing the jury on the certainty factor. He claimed that there was no evidence to support the instruction because an expert had "testified without contradiction that a witness's confidence in an identification does not positively correlate with its accuracy." (Id., at p. 1231.) The defendant also claimed that "the instruction was improper because it contradicted [the expert's] testimony, thereby implying the jury could not rely on her evidence." (Ibid.) 

Our Supreme Court rejected the defendant's claims. It reasoned: "First, as defendant concedes, the jury remained free to reject [the expert's] testimony although it was uncontradicted. [Citation.] The trial court was not required - indeed, was not permitted - to instruct the jury to view the evidence through the lens of her theory. Second, the jury was instructed that it should consider '[t]estimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses of an eyewitness.' Thus, if the jury was persuaded by [the expert's] testimony, the instructions allowed it to infer that [the witness's] positive identification was not necessarily an accurate one." (People v. Johnson, supra, 3 Cal.4th at pp. 1231-1232.)

Here, as in Johnson, the jury remained free to reject Dr. Shomer's testimony. The trial court gave CALJIC No. 2.80 concerning the weight to be given an expert opinion.^[3] The jury was instructed: "You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable." Thus, the jurors were not required to accept Dr. Shomer's opinion that "there is no relationship between [witnesses'] confidence [in their identification] and their actual accuracy." On the other hand, there was no danger that the jurors would interpret the certainty factor instruction as precluding them from relying on Dr. Shomer's opinion. CALJIC No. 2.80 made it clear that they could give his opinion whatever weight they thought it deserved. Accordingly, pursuant to the reasoning of Johnson, we conclude that the trial court did not err in instructing the jury on the certainty factor.^[4]

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

 

 

YEGAN, J.

 

We concur:

 

 

 

GILBERT, P.J.

 

 

 

PERREN, J.

 

Donald D. Coleman, Judge

 

Superior Court County of Ventura

 

______________________________

 

 

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

 

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

 

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